Social, Ethical, & Professional Issues in the Information Age
Social, Ethical, & Professional Issues in the Information Age CSC 540
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A Brief Look at Software Licensing Matt Gawarecki CSC 540 April 30 2009 Gawarecki 2 What Is Software Licensing By its very nature software is very different from most other goods available for purchase today perhaps the most glaring example of this lies in the fact that very few measures can be put in place to ascertain ownership Software applications can be copyrighted and patented depending on the intentions of the intellectual property quotIPquot owner Regardless of the situation full ownership of the original product remains in the hand of its creator requiring outside parties to conform to intellectual property law if they wish to use it in any manner outside the realm of fair use In licensing the owner or maker agrees to forfeit some of his or her lawful rights so as to grant the licensee some enhanced degree of freedom As will be covered this policy results in an interesting relationship between developer and end user that would not otherwise be present in a normal buyerseller scenario Implications For The Developer Licensing is of the utmost importance for the professional software developer and any business associated with software development By ensuring that end users agree to a set of reasonable terms before installing a given product a license provides invaluable benefits from a legal standpoint Because licenses in effect waive certain rights on behalf of the IP owner the potential for legal entanglement is greatly increased Enduser license agreements or EU LAs as they are sometimes called formally document the range of acceptable use cases outline the penalties of violating the agreedupon terms of the license and usually disclaim responsibility in the event of unintended program output Without the presence of a written license agreement that purchasers must agree to before use intellectual property holders risk losing their work to the public domain litigation from those who are unsatisfied or have suffered damages from the product andor uncontrolled product distribution that could result in declining sales Gawarecki 3 For The End User As already established much of the documentation contained within software licenses focuses on the rights of the copyright holder instead of the user perhaps with the exception of opensource licenses In all cases however the intent of such a document is to establish the terms under which the software can be acceptably used and supported The repercussions of violating an application s terms of service quotTOSquot can range from the minimal a written request to adjust usage patterns to fit the TOS for example to far more substantial penalties including large multithousand dollar fines Entire agencies ie the Business Software Alliance quotBSA have been formed on the basis of enforcing software copyrights and licenses against piracy and inappropriate use Concepts The business of enforcing and adhering to software licenses has swollen in importance over recent years transitioning from a backroom issue to a mainstream problem acknowledged by end user developer and business alike Stemming from this several new licensing schemes have been conceived and many new concepts have evolved to better accommodate both the IP owner and the consumer These range from the private sector in large and small scale commercial environments to more public arenas such as free and opensource software Public Domain Software released into the public domain as with any other copyrighted work is the least restrictive license available By definition public domain works are those not owned or controlled by any one entity thus they are made available to any party wishing to utilize them for any purpose whatsoever Technically software released into the public domain has no license associated with it applications distributed under these terms need only be used in accordance with the copyright laws of the appropriate country as the term llpublic domain has differing connotations depending on the area Gawarecki 4 in which it is invoked Public domain licenses are normally reserved to works formerly copyrighted that have been allowed to lapse Proprietary Licenses Proprietary licenses are sometimes referred to as quotclosedsource due to the nature of the products to which they re attached Most proprietary applications place heavy restrictions on usage modification and redistribution in fact this category is the most restrictive form of software license available to developers Essentially the terms of a proprietary license which are usually specific to the individual product it ships with may be written to restrict the user in any fashion permitted under copyright law after all a license is a voluntary waiver by the copyright holder to release his or her product into the hands of another party ownership is retained by the original artist including all the rights that go along with it OpenSourceFree Software Opensource and free software within the scope of this paper will be defined as any software distribution in which the project s source code is made readily available to end users Whereas proprietary software licenses are for the most part very straightforward in their terms eg no re distribution modification unauthorized use etc this class of EU LAs carries a much different set of norms resulting in some legal difficulty where it was once absent Most prominently freelibreopensource software quotFLOSSquot licenses are founded on the absolute reverse principles as their proprietary counterparts as their terms primarily encourage modification redistribution and so on In fact the most significant differences between all FLOSS licensing schemes lie in the steps necessary to legally redistribute or modify the software There are two major families of opensource license permissive and nonpermissive They each express a different school of thought mostly regarding the nature of redistribution but there are other minor differences as well Because these licenses pertain to free software they inherently allow the Gawarecki 5 end user to modify source code at will without restriction supporting the creation of llderivative works as they are referred under copyright law Permissive Licenses In a permissive software license a derivative work may be redistributed under more restrictive terms than its parent Essentially this means that even though a piece of software may be based on another application with a permissive license that new piece of software does not necessarily have to remain freely distributable Permissive licenses are often used by authors of software development kits shared libraries and other modules that add functionality to a program as well as standalone software projects open to the idea of businesses adapting their application to proprietaryclosedsource needs Traditionally there have existed three basic subtypes of opensource permissive license The BSD family of licenses so named because they originated with the release of BSD UNIX at UCBerkeley has evolved from four major clauses to a current tally of three with a popular quotmodifiedquot version that only includes two The fourclause version now popularly referred to as llBSDold was eventually discarded but is still in use today by others and sets forth the following list of terms 0 Redistributed source code must contain a copyright notice and a copy of the license documentation 0 Binary distributions must also include the same copyright notice and license documentation 0 All redistributed software or advertising for such must display an acknowledgement that the product llincludes software developed by the University of California Berkeley and its contributors and 0 Neither the names of the authoring parties nor any contributors to the software may be used for advertising purposes A major change occurred on July 221999 when William Hoskins director of the office of technology licensing for UCBerkeley deleted Clause 3 known within the community as llthe advertising Gawarecki 6 clause in its entirety resulting in the latest threeclause iteration of the BSD license Hoskins It had been objected to on the grounds that each involved party in the software development and distribution process required their own separate acknowledgement One advertisement for a version of NetBSD in 1997 included 75 such statements bringing to attention somewhat of an absurd situation Going a step further some software projects FreeBSD for one example moved to an even briefer twoclause version of the license that lifts the prohibition on using the names of contributors in advertising It is roughly equivalent to the MIT license The MIT license is more popularly referred to as the X11 license as it was originally written to suit the distribution of the X Window System V11 Essentially it is identical to the twoclause modified BSD license except it states the rights of the end user more clearly llPermission is hereby granted free of charge to any person obtaining a copy of this software and associated documentation files the quotSoftwarequot to deal in the Software without restriction including without limitation the rights to use copy modify merge publish distribute sublicense andor sell copies of the Software and to permit persons to whom the Software is furnished to do so The MITX11 License The other major permissive opensource license is the Apache License created by the Apache Software Foundation The Apache License is the de facto standard for software developed by the Foundation however over 3000 independent projects on SourceForgenet also use this license Much like the BSD and MIT licenses the Apache allows free use distribution modification and redistribution of modified versions It does not mandate redistribution under the same license any equivalent license or even any opensource license making it very attractive to businesses and commercial developers who take advantage of FLOSS software however it does require that two text files be included with any distribution of Apachelicensed material the LICENSE file which contains the Gawarecki 7 text of the license itself and the NOTICE file which names any Apachelicensed components contained in the software as well as acknowledgements of their authors Any existing copyright notice in files under an Apachelicensed project must be preserved to maintain conformance and any changes must be accompanied by notifications in each affected file detailing the modifications made NonPermissivequotCopyleft Copyleft licenses are so called because of their radical departure from the intent of mainstream copyright law Also called quotnonpermissive licenses any software licensed under the terms of a copyleft must remain under those terms throughout its lifetime as do any derived works Non permissive licenses are by this statement as it would seem very unfriendly toward proprietary and closedsource software solutions As a matter of fact copylefts cause the most trouble when integrated into commercial products as soon as any such product is released and nonpermissiver licensed code is found to exist within it the product must be rereleased in its entirety under the terms of the non permissive license Using this as an example it can be said that while copyrights tend to enforce and regulate the distribution of a creative work a copyleft strives to keep channels of distribution open to the public provided that the public llreturns the favor so to speak The world of copyleft licensing can be further divided into more specific categories as will be discussed There are two basic subtypes of copyleft license strong and weak These terms are relatively intuitive strongly copylefted materials conform to the nonpermissive philosophy very tightly requiring that all derived works and modifications no matter what the case inherit a license as freely distributable or even more so than the parent Weak copyleft agreements conversely make special cases in some situations such as shared software libraries of course these exceptions are patrolled carefully by the license s governing body so as to maintain the document s integrity Software projects may also choose to be fully or partially copyleftcompliant Under a fully copyleft project all parts of the work are lllocked into the license However some projects opt for Gawarecki 8 partial copyleft adherence meaning that only some components live under a nonpermissive license while the rest may be under a different license entirely One example of a strongly nonpermissive EULA is the GNU General Public License or GPL as it is commonly referred The GPL has been through three iterations as of this writing and has been in use since 1989 when it was written by free software advocate Richard M Stallman The GPL accounts for the majority of FLOSS software licenses on SourceForgenet as ofJanuary 2006 Like the permissive licenses already overviewed it grants licensees the ability to freely modify copy andor redistribute the original or any derivative works even allowing him or her to apply a fee to doing so as a sort of service Under the terms of the GPL all precompiled software binaries must be accompanied by either a a copy of the source code itself or b an offer by the distributor to give the source code to the licensee should he or she request it Being the forerunner to many copyleft licenses the first version of the GPL dealt mainly with these two clauses having its focus on more basic issues than would come later Mainly it dealt with the two clauses already discussed In June 1991 the GPL made its second release the most important change in which was Section 7 also called the llLiberty or Death clause This clause states that in the event of circumstances that prevent a licensee from being able to freely distribute the source code of a GPL ed application said licensee should not be allowed to distribute the software at all including its binary form The GPLv2 is currently the most widely used version of the GNU General Public License although Version 3 is gaining popularity The weakly copylefted counterpart to the GPL is the GNU LG PL which stands for the Lesser General Public License The LGPL is sometimes called by its former name the Library General Public License as software libraries happen to be the type of project where it is normally put to use For the most part the LG PL contains the same clauses as the original GPL with the exception that linking LGPL ed code to code under another license is considered acceptable and does not require the outside Gawarecki 9 project to change its license as long as it is not considered a truly derivative work Determination of that issue however is a matter for the courts and the copyright laws of the countries involved In the event that the project is said to be a derivative of the LG PL ed code the license states that the software must permit modification by the end user for his or her own purposes and reverse engineering to debug those modifications Microsoft Shared Source In recent years Microsoft once a staunch opponent of the opensource movement has adjusted its perspective and released a limited subset of its products to a small audience under what it calls a llShared Source License There are several different types of this license ranging from truly opensource to almost completely closedsource 0 Public License MsPL least restrictive of the Shared Source licenses allows distribution of compiled code under any MsPL compliant license but source code must be redistributed under the MsPL specifically o Reciprocal License MsRL allows distribution of derived code as long as modified files are included and stay under the MsRL file in the software not originally licensed under MsRL do not have to be relicensed similar to LGPL Reference Source License MsRSL most restrictive Shared Source License source code can only be viewed for reference purposes while debugging etc no modifications or redistribution are allowed Limited Public License MsLPL like the MsPL but free distribution rights are only granted when developing software for Windows and Limited Reciprocal License MsLRL like the MsRL but free distribution rights are only granted when developing on the Windows platform Microsoft Open Source Licenses Gawarecki 10 Dual Licensing Because several companies find themselves caught in the midst of opensource and proprietary software development the concept of dual licensing has become a reality increasing in visibility over recent years In dual licensing a company may release parts of their project under an opensource license to encourage outside development and collaboration with users while simultaneously marketing n quotenhancedquot version of their product with features under a proprietary license Dual licensing allows the distributing company to make money on support and their independently conceived ideas and at the same time grants them and their users the right to distribute free software rather than sometimes crippled demo versions of a proprietary application This can also be expanded to more than two licenses in the case of trilicensing or multilicensing Two such cases of dual licensing are the ever popular MySQL database management system and Trolltech s Qt software development libraries Controversy With so many fine details to keep track of gray areas abound within the realm of software licensing Some have questioned the morality of certain EU LAs stating several reasons why the practices of some development firms in effect today are less than scrupulous Unnecessary Complexity The vast majority of end user license agreements are fraught with quotlegalesequot complex sentences sometimes ambiguous as to their meaning and hardtounderstand grammar constructs If one were to consider the end user license agreement a contract between IP holder and product buyer aka end user most EULAs would fail miserably over two of the major criteria necessary for a proper contract a it must be fair to both parties and b both parties involved must completely understand and knowingly willingly agree to its terms Gawarecki 11 ShrinkWrapClickWrap Licensing A clickwrap license is one normally found during the software installation process or before using some websites Clickwraps enforce documented acceptance by the user because the software will not install or enable itself until the EULA is accepted However the user sometimes has no opportunity to read and acknowledge the license before installation and since at that point the package has already been unsealed a return to the seller is unlikely to be successful In ProCD v Zeidenberg a man fell victim to clickwrap licensing after purchasing a telephone database on CD ROM then uploading the database to the Internet for outside users to download for substantially less than his purchase price Prior court rulings established the precedent that telephone directories cannot be copyrighted which granted Zeidenberg a false sense of freedom however the Seventh Circuit court found that the software license acted as a contract between the two parties even outside copyright law and was thus enforceable In contrast however an earlier case Specht v Netscape Communications Corp resulted in a victory for the plaintiff after the court found that the plaintiff could effectively install and use Netscape s Smart Download application without explicitly agreeing to the terms of its license agreement This loophole effectively rendered the EULA null and void Possible Remedies Decreased Complexity It is indeed understandable that license documentation must maintain its validity in a court of law however such validity can be left untarnished even in the presence of simpler phrasing and vocabulary The most important step in the process of enforcing a license is ensuring that it is well understood both by the end user and by the IP owner without the mutual understanding of these two parties to a finite set of reasonable terms one cannot expect the document no more than a contract at its heart to be enforceable in any way If the creators and editors of constructing software licenses Gawarecki 12 allowed themselves to write in terms more comfortable to a lay audience problems already seen in the courts and in the software business could diminish substantially Decreased Regulations and Fair Use Policies While the terms of most software licenses are just and without bias some create unreasonable boundaries for the user leaving him or her in an awkward work environment As one example the Microsoft NET Framework places specific regulations on how one may conduct benchmarks with its components Allowing the end user a greater degree of freedom in daytoday usage while still keeping important IP owner rights intact will result in a more beneficial environment for both parties Gawarecki 13 Works Cited BSD License Problem httpwwwgnuorgphilosophybsdhtm The MITX11 License httpwwwopensourceorgIicensesmitIicensephp William Hoskins ftpftpcsberkeleyedupub4bsdREADMEmptLicenseChange Microsoft OpenSource Licenses httpwwwmicrosoftcomopensourceIicensesmspx Specht v Netscape Communications Corp httpwwwnysduscourtsgovcourtwebpdfDOZNYSCOl O7482PDF ProCD v Zeidenberg httpIawspfindawcom7th961139htm